Arizona’s Newly Enacted Forfeiture Reforms Will Make It Harder for Cops To Steal Property
Arizona Gov. Doug Ducey yesterday signed a package of civil forfeiture reforms that will make it substantially harder for law enforcement agencies to take people’s stuff by alleging that it is connected to criminal activity. H.B. 2810—which was approved by the state House in February and by the state Senate last week, in both cases by overwhelming margins—shows once again that legislators can defy the money-grubbing objections of police and prosecutors who worry that due process for property owners will derail the civil forfeiture money train.
Civil forfeiture, which is based on the legal fiction that property can be guilty even when its owner is innocent, allows the government to confiscate people’s assets without ever accusing them of a crime, let alone convicting them. H.B. 2810 addresses that problem by requiring a criminal conviction prior to forfeiture in most cases.
Under the law, property can still be seized based on probable cause to believe it was used to commit a crime or represents the proceeds of illegal activity. But now the government can complete the forfeiture only after convicting the owner. That new rule applies to all forfeitures except when the owner has died or fled, no longer lives in the United States, has abandoned the property, has agreed to surrender it as part of a plea deal, or has received immunity from prosecution in exchange for his testimony.
Most jurisdictions theoretically allow innocent owners to recover their property, but that typically requires them to prove their innocence, a reversal of the presumption that applies in criminal cases. H.B. 2810 instead puts the burden on the government to prove by “clear and convincing evidence” that the owner “had actual knowledge of the underlying crime that gave rise to the forfeiture.”
According to a tally by the Institute for Justice, Arizona is the 16th state to require a criminal conviction for some or all forfeitures. It is the 14th state to require that the government prove an owner is not innocent rather than making the owner prove that he is.
Even though it is perfectly legal to carry large amounts of cash, police tend to view it as inherently suspicious; they often seize money even when there is no evidence that it was derived from criminal activity. H.B. 2810 takes aim at that practice by declaring that “the presence or possession of U.S. currency, debit cards or credit cards, without other indicia of a crime that subjects property to forfeiture, is insufficient probable cause for seizure.”
Police have been known to cite the odor of marijuana or the discovery of drugs, even in tiny quantities, as an excuse to seize cash. H.B. 2810 eliminates “the inference that money or any other negotiable instrument found in proximity to contraband or to instrumentalities of an offense are proceeds of the contraband or intended to be used to facilitate the offense.”
Even when an owner can afford to challenge a forfeiture, and assuming that the property is worth enough to justify t
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